State Law Does Not Presume Smokers are Aware That Smoking Is
Addictive, Court Says

By Tina Bay, Staff
Writer

For the purpose of
determining when the limitation period began to run on a tobacco-related
personal injury claim, California law does not presume that smokers are aware
of the addictiveness or health hazards of smoking, the Supreme Court ruled
yesterday.

Instead, the justices
concluded, there is a general, rebuttable presumption that smokers suing over
tobacco-related injuries have knowledge of the wrongful cause of their injury.

Writing for a unanimous
court, Justice Carlos R. Moreno said that “if a plaintiff’s cause of action
depends upon delayed discovery of his or her addiction to tobacco in order to
be timely, he or she must plead facts showing an inability to have discovered
that addiction, such as reasonable reliance on tobacco company
misrepresentations.”

The ruling came in
response to an inquiry by the Ninth U.S. Circuit Court of Appeals, which is
reviewing the dismissal of the case of longtime smoker Leslie J. Grisham’s lawsuit
against Philip Morris U.S.A., Inc.

Grisham, who began
smoking around 1962 as a young teen, sued the tobacco company in March 2002 in
the U.S. District Court for the Central District of California, within a year
of being diagnosed with irreversible emphysema and chronic periodontitis.

Throughout her
complaint, she alleged that her addiction to cigarettes was a key link in the
causal chain leading to her physical injuries, and that she would not have
started smoking if she had been aware of the extent to which tobacco was
addictive harmful to her health.

Grisham’s suit included
a claim under the state’s unfair competition and business practices statute for
economic damages based on tobacco addiction. Though the limitation period for
an unfair competition claim is four years, Grisham alleged her unfair
competition cause of action was tolled by the fact that she was unaware of her
addiction to cigarettes until after learning she was ill with tobacco-related
diseases.

She asserted that Philip
Morris caused her addiction by inducing her to start smoking through a
marketing scheme targeted to young people, and that the company induced young
smokers to become addicted by fraudulently concealing the danger and addictive
nature of cigarettes and manipulating nicotine levels.

The complaint alleged
that Grisham attempted to quit smoking unsuccessfully on a number of occasions,
including a period in 1993 and 1994 through participation in Nicotine
Anonymous.

Philip Morris moved to
dismiss all of Grisham’s claims, arguing they were presumptively barred by the
Ninth Circuit’s decision in the case of Soliman v. Philip Morris, Inc.
(9th Cir. 2002) 311 F.3d, U.S. The court in Soliman held a plaintiff
could not avoid the statute of limitations by claiming ignorance of the risk of
nicotine addiction because addiction was “a commonly known risk of smoking and
is therefore a danger of which a plaintiff is presumed to be aware.”

Based on Soliman,
U.S. District Judge Steven V. Wilson charged Grisham with constructive
knowledge of her addiction-based injury, and pointed to her participation in
Nicotine Anonymous as evidence that she was aware of her injury at least by
1993. In addition, the judge ruled that her causes of action that were based on
physical injury were time-barred because they stemmed from the same tortious
conduct that caused her addiction.

On appeal, the Ninth
Circuit asked the California Supreme Court to clarify whether state law applied
a special presumption of awareness that smoking cigarettes is addictive. It
also asked the justices whether a cause of action for physical injury due to
tobacco addiction accrues when a smoker realizes he or she was addicted, even
though he or she has not yet been diagnosed with an injury.

Rejecting Philip Morris’
view, the justices rejected Soliman to the extent it held there is a
special presumption that smokers are aware that smoking is addictive or
harmful.

Moreno explained that
the state’s statute of limitations “generally has not recognized special
presumptions, conclusive or otherwise, based on some presumed state of common
knowledge.”

Moreover, he added,
though knowledge of smoking addiction has been widespread, tobacco companies’
misrepresentations of the danger and addictiveness of smoking have also been
found to be widespread.

He concluded Grisham’s
complaint on its face failed to plead sufficient facts justifying the delay in
discovering her smoking addiction, but noted her unfair competition claim might
still survive based on a showing that Philip Morris’ wrongful business
practices prevented her from discovering her addiction until recently.

As to the statute of
limitations on her physical injury claims, the justices held they would not
necessarily be time-barred if her addiction-based economic injury claim were
barred.

Moreno wrote:

“…Grisham’s discovery of
her alleged unfair competition cause of action and related causes of action for
economic injury based on smoking addiction did not start the statute of
limitations running on her tort causes of action based on later-discovered
appreciable physical injury. Rather, these latter causes of action did not
begin to accrue until the physical ailments themselves were, or reasonable
should have been, discovered.”

“It enables people to
file suit from the date they have a diagnosis of a substantial injury, and the
mere fact of being addicted does not bar the suit,” Baum said.

He noted the court
recognized that Philip Morris cannot claim its cigarettes only cause harm to a
small percentage of smokers, while at the same time asserting that a person
should know tobacco is addictive.